November 9, 2016

ONE LAST SERVICE FOR THE COUNTRY HE LOVES:

Can Obama Pardon Millions of Immigrants? (PETER L. MARKOWITZ, JULY 6, 2016, NY Times)

There is one area, however, where the president's unilateral ability to forgo punishment is uncontested and supported by over a hundred years of Supreme Court precedent: the pardon power. It has been consistently interpreted to include the power to grant broad amnesties from prosecution to large groups when the president deems it in the public interest.

Such pardons have been used by presidents including George Washington, Thomas Jefferson, James Madison, Abraham Lincoln and Andrew Johnson. Most recently, Jimmy Carter issued a pardon to around half a million men who had violated draft laws to avoid military service in Vietnam.

It's a common assumption that pardons can be used only for criminal offenses, and it's true that they have not been used before for civil immigration violations. However, the Constitution extends the power to all "offenses against the United States," which can be interpreted more broadly than just criminal offenses.

A pardon could not achieve everything the deferred deportation program aspired to -- notably, it could not deliver work permits. However, it has a certain operational elegance to it that would avoid many of the political battles surrounding the deferral program. No application process would be necessary. A pardon becomes immediately effective upon issuance by a president. With fewer than 300 words and a signature, President Carter's pardon became effective on his first full day in office.

Everyone accepts that this needs to be done--see the exit polls and Donald's own pre-campaign comments--but they're not likely to have more political will to do it after yesterday.  So President Obama should just do it for us, as W should have done in 2007 when Senator Obama helped kill reform.

Posted by at November 9, 2016 6:17 AM

  

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